Statutory interpretation and the role of the courts after Brexit

Activity: Talk or presentation typesOral presentation


My paper evaluates the impact of the European Union (Withdrawal) Act 2018 on statutory interpretation and on the role of the courts. The Act’s new interpretative obligations create a myriad of issues that will occupy litigants and courts in the future. I explain how the complexities of the Act should be disentangled and how courts should exercise their policy choices under the terms of the Act. My main argument is that the general purpose of the EUWA - legal continuity - has a much further reach than is visible on the surface of the Act. I show that the assumption that Brexit is a clear break from EU law is in several respects contradicted by the detail of the legislative scheme. The EUWA’s strong theme of legal continuity has the consequence that domestic law will remain deeply intertwined and aligned with EU law after exit day. This generates a number of surprising results. For example, it is argued that EU legal culture and the CJEU’s teleological method of statutory interpretation is retained one-to-one. Furthermore, the Charter of Fundamental Rights of the European Union will remain highly significant for the interpretation of retained fundamental rights after exit day. I also demonstrate that the 2018 Act adjusts the relationship between the courts and Parliament in a way that is not foreseen. European interpretative obligations and methods have shaped this relationship and Brexit does not mean that it is profoundly restructured. I demonstrate that the EUWA strengthens rather than weakens the following current trends in UK constitutional law. The Act (a) extends judicial powers to re-interpret and alter the meaning of legislation, (b) intensifies instead of reverses the shifting of power from the legislature to the judiciary and (c) increases the courts’ institutional position as policy innovators.
PeriodApr 2019
Event titleICON-S British-Irish Chapter Annual Conference
Event typeConference
LocationGlasgow, United KingdomShow on map
Degree of RecognitionNational